By Dan Gephart, November 5, 2019
Last month, we talked with MSPB General Counsel Tristan Leavitt about the adjudicatory and other work that the 200-plus employee agency continues to do despite not having any Board members since February. It’s a few weeks later and the Board still lacks members, while the lack of a quorum has inched even closer to hitting the three-year mark.
This month, we catch up with James Read. The former chief counsel for then-Member Robbins took over as director of the agency’s Policy and Evaluation office a few years ago. Read oversees the group of psychologists, HR specialists, statisticians, and lawyers who fulfill the agency’s statutory responsibility to conduct objective, non-partisan studies of the Federal civil service and other merit systems in the Executive Branch.
DG: How have your unit’s reports been hampered by the lack of a quorum?
JR: We’ve been putting out publications in shorter form since we lost the quorum, but it’s more than just length. The official reports as described in statute go to the President and Congress and are approved by the board, and they typically contain policy recommendations. They are only issued with approval of board members. Our thinking is that to the extent we can provide useful information through research briefs, we should. They are a little lighter on recommendations, but we have been putting out publications.
We have information about sexual harassment in the federal workplace that others don’t have. We’ve been releasing some of it, but an official report is on hold. Almost everything else we’ve been trying to convert to shorter publications.
DG: How do you measure whether a report is successful?
JR: We don’t have a hard measure. We look at the audience for which a report may be intended, and see what effect it had on the audience. Some reports are for policy makers. A successful report would be one that results in change of policy. An example would be our 2014 report that talked about veterans hiring, and a DOD-specific authority that was restricting competition for jobs and had other unintended consequences. Congress took it up and changed the law — and cited our report. That’s an example of success.
Other reports, we intend as educational pieces. Some are intended for managers and new leaders to help educate them. I’ve heard of chief learning officers in agencies using our reports to design in-house training. When that happens, a report did its job.
Sometimes, reports are intended for multiple audiences at the same time. We’ll have practice pointers intended for HR and managers, footnotes and appendices intended for researchers, people trying to replicate the work in their organization. We believe it’s important to show our work, so we remain credible. We’re not just sitting here in an ivory tower contemplating. We have an empirical basis for our findings.
DG: You recently asked for input on what reports people want to see. What kind of input did you get? What reports will you be doing based on that feedback?
JR: (We received) hundreds of ideas. The last time we went out asking for ideas was 2014, so five years on we felt we needed to refresh the ideas. The timing seemed to make sense with the lack of quorum. We went out to stakeholders, unions, chief human capital officers, affinity groups, and individuals. A lot of what we got were variations on themes of what we’ve seen throughout the years: Are whistleblower protections adequate? How can we improve the hiring, classification, compensation and performance management systems? Are they due for overhauls? How does the government adapt to changing expectations of younger workers? What alternatives might there be to the Title 5 system? We’ve been vetting and refining the ideas for several weeks now. Our goal is to have a proposed agenda to present to the new chairman when he arrives.
DG: What has been the most controversial report you’ve done?
JR: A 2015 report of how agencies use various appointing authorities and the results of the different choices agencies make caused a bit of a stir. The report found Title 5 hiring rules systematically favor men over women. We found, for example, that since the 1970s, women’s participation in general civilian labor force grew from the lower 30 percent range to almost 50 percent, but in many years the government was not even reaching 40 percent.
The Civil Service Reform Act of 1978 states that the Government should strive to achieve a workforce representative of all segments of society. For many years now, women have been earning more bachelor’s degrees than men and they make up almost half the civilian workforce, yet under 40 percent of new hiring is women. This took people by surprise. They thought we were attacking OPM, and that was certainly not the intention. The biggest question raised by report was: What do we do about this?
One side note: We were criticized for not including VA nurses. If we had included them in the percentage of women as new hires, it would’ve been higher. But in a way, that criticism showed our point. We were looking at Title 5 hiring, and the nurses at the VA are hired under Title 38. So staying within Title 5 world, you do see a hiring system that appears to disadvantage women.
DG: Will you follow up on this report?
JR: I’d like to follow up. The last time I looked at the numbers was for FY 16 and they hadn’t budged. It’s a good area for follow-up, not a full-blown report but a dive into the statistics. It may be that to some extent women are making individual choices not to seek government employment in the same numbers as men do, so we need to study the applicant pool.
DG: The Supreme Court will rule this term on whether Title VII covers discrimination based on sexual orientation. You did a report on that a few years ago. However, that report wasn’t controversial.
JR: There had been questions swirling for years: What’s the source of the prohibition? Title VII of the Civil Rights Act? The CSRA of 1978? Something else? We looked at the history of systematic discrimination against gay employees and the gradual change of view to acceptance. Clarity regarding the legal prohibitions was needed, but MSPB had be extremely careful not to come down on one side or another because MSPB is not a policy-making body. Every year since 2000 or so, there was someone in the House who introduced a bill to amend Title VII to prohibit discrimination in employment based on sexual orientation. We didn’t want to look like we were taking a side in the debate. We were expecting some backlash from the report, and we didn’t get it. The report was well-received.
DG: What other reports have had impact?
JR: There was a pair of related publications from 2015. One was a full report on due process, an official report to the President and Congress. Another report was on adverse actions. Deb (Hopkins, FELTG President) quoted from it in your newsletter recently, and that’s an illustration of its lasting power. In 2014-15, influential voices were saying “the system is broken, and you cannot fire a federal employee. Maybe we should go at-will.” It turned out that many people managing in the system didn’t understand it. They thought you needed a higher standard of proof to fire a federal employee than the law requires, and we pointed out that’s not the case. We developed an outreach program around the publications. The message I tried to deliver was managers need to understand the system and have the will to act, and the support of the agency. We don’t need to throw out rules or abandon due process.
DG: What do you see as the most significant challenge facing the civil service in the next 10 years?
JR: The relationship between Washington and local agencies needs to be recalibrated. I’m not suggesting one direction or another. Look at what happened in ’90s. OPM was cut in half in terms of its resources and authorities were delegated to the field. In the area of hiring, for example, you see the difficulties in the system. Twenty-five years ago there was the symbolic burning of the (Federal Personnel Manual). The rules and the laws upon which they were based were not repealed, however, even as OPM delegated authority to several hundreds of offices that now have the responsibility for developing sound recruitment strategies and rigorous legally compliant assessments, and then evaluating applications. That’s hard for a typical HR office to do that well; the exceptions would be the really big departments with ample resources and expertise that hire many people under same job series on a regular basis. In other words, hiring might not be susceptible to effective scaling down.
The challenge is recalibrating the model of central HR policymaking with local decision-making and execution in such a way that HR can be done better. We’ve been studying the effectiveness of the HR workforce, and are finding that there’s great dissatisfaction among managers and agency leaders on what they are getting from their HR shops. It’s not necessarily the fault of the people in HR. The dissatisfaction may stem from the challenges intrinsic to the current decentralized model.